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24 thoughts on “Monday Message Board”

I was wondering about the investor-state dispute resolution process in free trade agreements, and how they get around Chapter III of the Australian Constitution. Chapter III stipulates that only a court can impose a penalty, and the High Court has been pretty strict as to what is a court. From my limited understanding, the investor-state dispute resolution bodies wouldn’t pass muster, but to paraphrase Barwick CJ, I must be wrong, so how does it work?

The High Court has repeatedly asserted its power to declare that legislation is inconsistent with the Constitution and therefore invalid, and no government has ever challenged that. I don’t know how often court challenges to the constitutionality of legislation succeed and how often they fail, but my guess is that successful challenges do not count as very unlikely. However …

… I see no chance of a successful court challenge based on the Constitution saying that ‘only a court can impose a penalty’, because the Constitution doesn’t say that. (When you think about it carefully, how could it?)

The judicial power of the Commonwealth shall be vested in a Federal Supreme Court, to be called the High Court of Australia, and in such other federal courts as the Parliament creates, and in such other courts as it invests with federal jurisdiction. The High Court shall consist of a Chief Justice, and so many other Justices, not less than two, as the Parliament prescribes.

Only courts can exercise the commonwealth judicial power. The scope for non-judicial penalties isn’t zero, but it’s pretty small and circumscribed.

[s72 sets out requirements for commonwealth courts which I believe has been held to be essentially a definition of “court”; certainly the word was intended to mean something, and s72 is as good a guess as anything else.]

In mid February a secret ISDS tribunal held secret hearings in Singapore. The claim was brought by Philip Morris Asia (which had bought 100% of Philip Morris Australia so that it could invoke the ISDS jurisdiction from Honk Kong) against the Australian Government seeking billions in damages, partly because of a High Court decision, over plain packaging laws.

The outcome is secret at this stage.

Depending on the wording, an ISDS can not only remove our High Court from the appeal process but also render Australia liable for damages if our High Court makes a decision the 1% doesn’t like.

Of course the ALP/LNP fascist duopoly are in lockstep support for taking us into the TPP and especially further into ISDS takeover of our judicial system.

But as long as we all blindly support the ALP, everything will feel fine.

Which ‘we all’ are you referring to? Nowhere near all of the people of Australia support the ALP (blindly or otherwise); nowhere near all the commenters on this blog support the ALP (blindly or otherwise). Presumably if something is supported by both the ALP and the Coalition, then blind supporters (but not always other supporters) of both the ALP and the Coalition will feel fine about it. If you’re saying that blind supporters of the ALP will always feel fine about anything supported by the ALP, that’s pretty much true by definition (what else could ‘blind’ support mean?), but it’s just as true that blind supporters of the Coalition will always feel fine about anything supported by the Coalition, and so on for any party you care to name.

Thanks Colin. On the basis of that case it seems to me that there could well be a successful attack on the investor-state dispute resolution process, beginning with the case on tobacco advertising brought under the Hong Kong – Australia treaty.

Note though that s72 only applies to courts established by the commonwealth; the text of the constitution only requires that third-party courts be courts, and not henhouses or bathing machines cunningly disguised. Normal rules of judicial interpretation means that “court” has its normal everyday meaning… but exactly what that means real-world is subject to dispute/interpretation. It seems fairly likely that the high court would find that most of the s72 requirements [appropriately varied] would be required before something could be called a “court”, but…

There’s nothing in there about circumscription of scope of non-judicial penalties; in particular, there’s nothing there saying that bodies other than courts cannot impose financial penalties. Bodies other than courts do regularly impose financial penalties; you have shown no reason to suppose that’s unconstitutional.

But who is the target of your sarcasm? It reads like sarcasm directed at people who are blindly urging you to support the ALP, but who are those people? Not John Quiggin; not commenters on this blog, either. It’s also not something that’s just ‘in the air’, pervading the Australian mass media or Australian popular culture. If there are people somewhere else urging you blindly to support the ALP, why is here the place you are choosing to direct your sarcasm?

The terrain is also changed when the negotiating narrative is disrupted through the passing of legislation aimed at reversing the humanitarian crisis and its main causes: corruption, tax avoidance and tax evasion. These measures help the most impoverished part of the population. 300,000 families will receive free electricity, food vouchers and subsidies for rent. Close to four million families and small businesses will be given the chance to pay their tax, social security and other debt arrears in 100 installments. Finally, the foreclosure of family homes will be banned. As a first symbolic move, this law indicates that the commitment of the government to social justice is not negotiable.